Facts

The facts of the case can be summarized as follows

  • K. H. commissioned his controlled company N. S.p.a. to instruct Bank X (the defendant) to grant a fiduciary loan to K. H. AG. The repayments were to be credited up to DM 600,000 to K. H.'s private account with the defendant.
  • By a contract, I., also controlled by K. H., took the legal position of the fiduciary grantor in place of N. S.p.a.
  • K. H. transferred the two companies I. and K. H. AG to his son M. H. (the plaintiff). The private account to which the repayments were made passed to K. H.'s wife upon his death and then to the plaintiff's siblings after her death.
  • The plaintiff instructed the defendant to credit the payments from the fiduciary loan not to the private account but to I. The defendant accepted this instruction without closely examining the plaintiff's authorization.
  • The plaintiff held a credit balance of a total of CHF 196,942 with the defendant, which amount he claimed with interest. The defendant opposed the claim with a counterclaim for damages and unjust enrichment of CHF 256,836.30 from unauthorized representation.

Considerations

The Federal Supreme Court ruled as follows

a) Pursuant to Art. 39 para. 1 CO, the unauthorized representative is liable for the negative interest of the third party, and in case of fault, also for the positive interest (Art. 39 para. 2 CO), provided that the third party neither knew nor should have known of the lack of authority.

b) A claim for unjust enrichment is available to the third party not only against the allegedly represented party who received the performance, but also against the unauthorized representative who accepted it on behalf of the allegedly…